The Practice what constitutes an Attempt Blockade. proof to the contrary, in case the vessel had left a neutral port subsequent to the notification of the blockade to the Power to which such port belonged, and provided that the notification was made in sufficient time (Article 15). But in case a neutral vessel approaching a blockaded port had neither actual nor presumptive knowledge of the blockade, she was not to be considered in delicto, and notification had to be made to her by recording a warning in her log-book. Further, if a neutral vessel was coming out of a blockaded port, she had to be allowed to pass free, in case, through the negligence of the officer commanding the blockading fleet, no declaration of blockade had been notified to the local authorities, or in case, in the declaration as notified, no period had been mentioned within which neutral vessels might come out (Article 16). However this may be, the declaration remains unratified, and modifications were made with regard to presumed knowledge of the existence of a blockade, when its rules were put into force by the Allied Powers at the outbreak of the World War. § 385. The practice of States, as well as the opinions of writers, have differed much as to what acts of a vessel constitute an attempt to break blockade. (1) The Second Armed Neutrality of 1800 sought to restrict an attempt to break blockade to the employto break ment of force or ruse by a vessel on the line of blockade for the purpose of passing through. This was, on the whole, the practice of France, which moreover, as stated before, required that the vessel should before the attempt have received special warning from one of the blockading men-of-war. Many writers 1 took the same standpoint. (2) The practice of other States, such as Japan, approved by many writers,2 went beyond this, and 1 See Hautefeuille, ii. p. 234; Kleen, i. § 137; Gessner, p. 202; Dupuis, No. 185; Fauchille, Blocus, p. 322. 2 See Bluntschli, § 835; Perels, § 51; Geffcken in Holtzendorff, iv. considered that an attempt to break blockade had been made when a vessel, with or without force or ruse, endeavoured to pass the line of blockade; when, for instance, a vessel destined for a blockaded place was found anchoring or cruising near the line of blockade. (3) The practice of Great Britain and the United States of America went furthest, since it considered that an attempt to break blockade had been made when a vessel, not destined according to her shippapers for a blockaded port, was found near it and steering for it; or when a vessel, destined for a port the blockade of which was diplomatically notified, started on her journey knowing that the blockade had not been raised (except when the port from which the vessel sailed was so far distant from the scene of war as to justify her master in starting for a destination known to be blockaded on the chance of finding that the blockade had been removed, and with an intention of changing her destination should that not prove to be the case).1 This practice, further, applied the doctrine of continuous voyages 2 to blockade, for it considered that an attempt to break blockade was committed by a vessel which, although ostensibly destined for a neutral or an unblockaded port, in reality intended, after touching there, to go on to a blockaded port.3 (4) During the Civil War, the American Prize Courts carried the practice further by condemning vessels for breach of blockade which knowingly carried to a neutral port cargo ultimately destined for a blockaded p. 763; Rivier, ii. p. 431. See also $25 of the Prussian Regulations (1864) concerning Naval Prizes, and Article 29 of the Japanese Naval Prize Law. 1 See Holland, Prize Law, § 133, and U.S. Naval War Code, Article 42; The Betsey, (1799) 1 C. Rob. 332. 2 On this doctrine, see below, § 400 n. 3 See Holland, Prize Law, § 134, and the case of The James Cook, (1810) Edwards 261. port, and by condemning for breach of blockade such cargo1 as was ultimately destined for a blockaded port, when the carrying vessel was ignorant of its ulterior destination. Thus the Bermuda,2 a British vessel with a cargo part of which was, in the opinion of the American courts, ultimately destined for the blockaded ports of the Confederate States, was seized on her voyage to the neutral British port of Nassau, in the Bahama Islands, and condemned for breach of blockade by the American courts. The same happened to the British vessel Stephen Hart, which was seized on her voyage to the neutral port of Cardenas, in Cuba. And in the famous case of The Springbok, a British vessel also destined for Nassau, in the Bahama Islands, which was seized on her voyage to this neutral British port, the cargo alone was finally condemned for breach of blockade, since, in the opinion of the court, the vessel was not cognisant that the cargo was intended to reach a blockaded port. The same happened to the cargo of the British vessel Peterhoff 5 destined for the neutral port of Matamoros, in Mexico. The British Government declined to intervene in favour of the British owners of the respective vessels and cargoes." 7 It is true that the majority of authorities assert the illegality of these judgments of the American Prize Courts, but it is a fact that Great Britain at the time recognised as correct the principles which are the basis of these judgments. §385a. The unratified Declaration of London sought to effect a settlement of this controversial matter. 1 But not the vessel. 2 (1865) 3 Wall. 514. 3 (1865) 3 Wall. 559. 4 (1866) 5 Wall. 1. (1866) 5 Wall. 28. "See Parl. Papers, Misc., No. 1 (1900). 7 See, for instance, Holland, Prize Law, p. 38, n. 2; Phillimore, iii. $298; Twiss, Belligerent Right on the High Seas (1884), p. 19; Hall, § 263; Gessner, Kriegführende und neutrale Mächte (1877), pp. 95-100; Bluntschli, § 835; Perels, § 51; Fauchille, Blocus, pp. 333-344; Martens, ii. § 124. See also Wharton, iii. § 362, p. 401, and Moore, vii. § 1276. constituted an to break Article 17 provided that neutral vessels may not be What captured for breach of blockade except within the area of operations of the men-of-war detailed to render the blockade Attempt effective,' and Article 19 provided that 'whatever may be Blockade the ulterior destination of a vessel or of her cargo, she may according not be captured for breach of blockade, if, at the moment, ratified she is on the way to a non-blockaded port.' to the un Declara tion of According to these provisions, a neutral vessel, to be London. guilty of an attempt to break blockade, must actually have entered the area of operations (rayon d'action) of the blockading fleet. This area of operations was to be a question of fact in each case. 'When a Government decides to undertake blockading operations against some part of the enemy coast it details a certain number of men-of-war to take part in the blockade, and entrusts the command to an officer whose duty it is to use them for the purpose of making the blockade effective. The commander of the naval force thus formed posts the vessels at his disposal according to the line of the coast and the geographical position of the blockaded places, and instructs each vessel as to the part which she has to play, and especially as to the zone which she is to watch. All the zones watched taken together and so organised as to make the blockade effective, form the area of operations of the blockading force.' 1 But the mere fact that a neutral vessel had entered the area of operations was not to be sufficient to justify her capture; she had also to be destined for, and be on her way to, the blockaded port. If she passed through the area of operations without being destined for, and on her way to, the blockaded port, she was not attempting to break the blockade. Even should the ulterior destination of a vessel or her cargo be the blockaded port, she was not to be regarded as attempting to break the blockade, if, at the moment of visit, she was really on her way to a non-blockaded port (Article 19). However, she had to be really, and not only apparently, on her way to a non 1 Report of the Drafting Committee on Article 17. When blockaded port; if it could be proved that in reality her immediate destination was the blockaded port and that she only feigned to be destined for a non-blockaded port, she might be captured, for she was actually attempting to break the blockade.1 However that may be, these provisions excluded the application to blockade of the doctrine of continuous voyage in any form. But at the outbreak of the World War the declaration had not been ratified, and though at first the Allied Governments adopted most of its rules, including Article 19, in March 19162 they abandoned that article, and declared that the principle of continuous voyage or ultimate destination should apply to blockade. Later, as has already been explained, they abandoned the declaration altogether.3 § 386. Although blockade inwards interdicts ingress to all vessels, if not especially licensed, necessity makes Breach of exceptions to the rule. not considered Blockade. According to the practice which before the World War had been quite general, whenever a vessel either by need of repairs,5 stress of weather, want of water or provisions, or upon any other ground, was absolutely obliged to enter a blockaded port, such ingress did not constitute a breach of blockade. On the other hand, according to British practice at any rate, ingress did not cease to be breach of blockade if caused by intoxication of the master, ignorance of the coast, loss of compass,10 endeavour to get a pilot,11 and the like, or an attempt to ascertain 12 whether the blockade was raised.13 |